QHYD and Minister for Immigration and Multicultural Affairs (Migration)

Case [2024] ARTA 273

QHYD and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 273 (12 November 2024)

Applicant:QHYD

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/6304 

Tribunal:Deputy President Thompson SC  

Place:Perth

Date:12 November 2024

Decision:The decision of the delegate of the Minister dated 16 August 2024 not to revoke the cancellation of the Applicant’s Global Special Humanitarian (Class XB) (subclass 202) visa under section 501CA(4) is affirmed.

............[SGD].........................................................

Deputy President

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct  – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 39 year old citizen of Sudan or South Sudan – extent of impediments if returned to Sudan or South Sudan – Non-Revocation Decision is affirmed

LEGISLATION

Migration Act 1958 (Cth) – sections 15, 189, 196, 197C, 198, 499(1), 499(2A), 501(3), 501(3A), 501(6)(a), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b), 501CA(4)(b)(i)-(ii), 501E, 501F, 503

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Schedule 16 Part 5 section 24

CASES

AJL20 v Commonwealth of Australia [2020] FCA 1305

BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121

Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591

Plaintiff M1/2021 v Minister for Home Affairs (2022)275 CLR 528; [2022] HCA 17

RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIALS

Australian Government, Department of Foreign Affairs and Trade, ‘South Sudan’, Smarttraveller.gov.au (Web Page, 17 September 2024) < Government, Department of Foreign Affairs and Trade, ‘Sudan’, Smarttraveller.gov.au (Web Page, 21 May 2024) < Regulations 1994 (Cth), part 202

Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 5.2, 5.1(2)-(4), 7, 7.2, 8, 8(1), 8.1(1), 8.1.1(1)(a)-(b), 8.1.2(2)(a)-(b), 8.3, 8.4, 8.4(4), 8.5, 8.5(2), 9, 9.1, 9.1.2(2), 9.2, 9.2(1)(a)-(c)

The Australian Concise Oxford Dictionary (2nd ed, 1992), ‘blood-money’ (def 1)

Statement of Reasons

THE APPLICATION

  1. The Applicant has sought review of a decision of a delegate of the Respondent (Minister) dated 16 August 2024, not to revoke the cancellation of his…

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AGLC
QHYD and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 273
Case
[2024] ARTA 273
Decision Date

CaseChat Overview and Summary

In the matter of QHYD and Minister for Immigration and Multicultural Affairs, the court was tasked with reviewing a decision by a delegate of the Minister not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a 39-year-old citizen of either Sudan or South Sudan, had served a term of imprisonment and faced mandatory visa cancellation under the Migration Act. The primary issue for the court was to determine whether the delegate's decision was legally sound, considering the character test, the protection of the Australian community, and other relevant factors outlined in Direction no. 110.

The court examined the nature and seriousness of the Applicant's criminal offending, the risk of further offending, and the strength, nature, and duration of the Applicant's ties to Australia. It also considered the best interests of the Applicant's 13-year-old nephew and the expectations of the Australian community. The Applicant had been in Australia since 2007, having fled Sudan as a child, and had established a network of family and community ties. The court found that the Applicant had no history of family violence, which carried neutral weight in the decision-making process.

The court concluded that the delegate's decision not to revoke the visa cancellation was reasonable and lawful. The Applicant's criminal history, while serious, did not outweigh the other considerations, particularly the established ties to Australia and the potential support available from the Sudanese community. The court found that the delegate had appropriately balanced the factors in line with Direction no. 110, and the decision was thus affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 16 August 2024, pursuant to section 501CA(4) of the Act, a delegate of the Minister decided not to revoke the Cancellation Decision.[10] The Applicant was notified of the delegate’s decision by letter dated 18 August 2024,[11] which was hand delivered to him at Yongah Hill Immigration Detention Centre on 20 August 2024 (Non-Revocation Decision).[12] [10] Exhibit R1, G2.[11] Exhibit R1, G6, page 127.[12] Exhibit R1, G6, page 136. The Applicant lodged an application for review of the Non-Revocation Decision with the Administrative Appeals Tribunal (AAT) on 27 August 2024.[13] On 14 October 2024, the new Administrative Review Tribunal (ART) replaced the AAT and all matters which were before the AAT were transferred to the ART[14]. References to the Tribunal in this decision refer to the AAT prior to 14 October 2024, and the ART from that date. [13] Exhibit R1, G1.[14] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act2024 (Cth), Schedule 16 Part 5 section 24.THE HEARING AND THE EVIDENCE The hearing took place in Perth on 23 and 24 October 2024. The Applicant represented himself and was assisted by an interpreter throughout the proceedings. The Minister was represented by Counsel. The following documents were marked as exhibits:(a)Documents E, K, and L (Exhibit A1);(b)Document J2 (Exhibit A2);(c)Letter dated 8 October 2024 from Mr J of the relevant community association (Exhibit A3);(d)Email dated 5 October 2024 from a brother of the Applicant (Exhibit A4);(e)Email dated 5 October 2024 from a sister of the Applicant (Exhibit A5);(f)Section 501G documents (Exhibit R1);(g)Tender bundle, excluding page 59 at paragraph [3], pages 67-68, 71-72, and page 219 (Exhibit R2); and(h)Respondent’s Statement of Facts, Issues and Contentions dated 16 September 2024, excluding paragraph [45] (Exhibit R3). The Applicant gave evidence and was cross-examined. Both his sister and brother, who had provided emails,[15] and Mr J, who provided a letter,[16] gave evidence and were cross-examined. I found all the witnesses to be serious and truthful in their evidence. LEGISLATIVE FRAMEWORK[15] Exhibit A4; Exhibit A5.[16] Exhibit A3.Migration Act Under sections 501(3) and 501(3A) of the Act, the Minister must cancel a person’s visa if he or she is satisfied that the person does not pass the ‘character test’, and the visa-holder is serving a full-time sentence of imprisonment in a custodial institution of the Commonwealth, a State or a Territory. Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record, which in turn is defined in section 501(7)(c) to mean they have been sentenced to a term of imprisonment of 12 months or more. Once a person’s visa is cancelled under section 501(3A) of the Act, the Minister must give them written notice inviting them to make representations about revocation of the original decision.[17] If representations are made, the Minister may revoke the decision to cancel the visa if satisfied that:[18](a)the person passes the character test; or (b)there is another reason why the original decision should be revoked. [17] Section 501CA(3) of the Act.[18] Section 501CA(4)(b) of the Act.

Ratio Decidendi

Legal Principle Established

There is no evidence of family violence, consequently this consideration carries neutral weight.Strength, nature and duration of the Applicant’s ties to Australia In accordance with [8.3] of Direction 110, I must also consider the strength, nature and duration of the Applicant’s ties to Australia. The Applicant arrived in Australia in 2007, with his sister, as a 22 year old adult. Prior to his arrival he had been living for the majority of his life in a refugee camp in Uganda, where he had fled with his sister as a child from his birthplace of Sudan. In his oral evidence he told the Tribunal he was a very young child when he fled Sudan.[59] After the Applicant came to Australia the civil war in Sudan resulted in the creation of two states, Sudan and South Sudan, and there remains ambiguity as to whether he is now a citizen of Sudan or South Sudan.[59] Transcript, page 30. The Applicant has several siblings in Australia,[60] two of whom have become Australian citizens. His sister, with whom he came to Australia in 2007, lives in Perth. She has a 13 year old son (Nephew A), works as a school cleaner, and is prepared for her brother to live in her home, having already cleared this with her landlord. She explained that in her culture it is common for adult family members to share a home.[60] Exhibit R1, G4, page 61. The Applicant’s sister and Nephew A regularly visited the Applicant in prison,[61] and he maintains regular contact with them by telephone.[62] Given her work schedule and the distance to the immigration detention facility, it is difficult for his sister to visit him in detention. [61] Exhibit R2, TB3, pages 164-171.[62] Exhibit R2, TB4, page 274 (example only). The Applicant’s brother lives in Melbourne and has multiple sons aged 19 years and younger. He works for a logistics business and owns his home in Melbourne. The brother said that he intended to come to Perth to visit the Applicant, as he had done whilst the Applicant was in prison. He told me that his three eldest sons, born in 2005, 2007 and 2009, have met the Applicant, but the younger ones were born whilst the Applicant was in prison and so have not met the Applicant. The Applicant and his brother maintain contact by telephone now that the Applicant is in immigration detention. There is also evidence of a wider family network of relatives in Australia,[63] including evidence of their visits to him whilst he was in prison.[64][63] Exhibit R1, G4, page 61.[64] Exhibit R2, TB3, pages 164-171. Mr J gave evidence that the Applicant had been involved in the Sudanese community by volunteering and engaging in community activities prior to his imprisonment. He also explained some of the community services and programs available to the 5,000 members of the Perth based community, including a men’s group which has a focus on anger management and harm minimisation. He gave evidence that the community was currently supporting other people who had been in prison, and he had visited Sudanese men in prison, including the Applicant. He explained the various programs the community organised and activities which were offered to men as a means of connecting with others in the community. He also gave evidence of external assistance programs and providers the community organised to assist their members and confirmed that the community was willing to support and assist the Applicant.